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7 September 2010

Canning Copyright: Existing and Proposed Law

Alternatives to Copyright
There are, of course, a large number of Creative Commons licences which are used by the million to license everything from literary works to photographs. However, what is inescapable is that the entire copyleft system finds its roots in copyright. In fact, copyleft licences are nothing but a form of copyright licensing.

There have also been other attempts at moving away from the copyright system such as the Konomark Project initiated by Prof. Eric E. Johnson in 2008. The project involves the use of a new mark referred to as a “Konomark” to signify that the copyright owner of the relevant work is generally willing to share his rights in the work without any compensation. Although the project is still in the Beta stage, it does not appear to have really taken off. This could partly be because the benefit of using a Konomark over using a copyleft license is not immediately apparent. What the Konomark does is merely indicate to potential users that the owner of the work in question is willing to grant permission for his work to be used. As such, each potential licensee would have to enter into a separate negotiation with the owner for the grant of a license.

As opposed to this, the grant of a license to a potential user under a Creative Commons license is “automatic”. The procedure of licensing a work with a copyleft license is extremely simple, and future use by third parties does not involve cumbersome negotiations each time. It would therefore appear that unless the copyright owner is particularly fussy, a Creative Commons license would be preferable to using a Konomark. However, should a particular intended use not fall within the scope of the Creative Commons license, the Konomark would be useful in signifying to others that the copyright owner is willing to share rights beyond those envisaged by the Creative Commons license in certain circumstances.

Free Culture

Going a step further, in a way, are logos such as the Free Culture logo. This logo can be affixed to works which would be protected by copyright law, possibly in conjunction with a Creative Commons licence. The term “Free Culture” originated when Larry Lessig wrote a book of the same name in 2004, in which he stated (at page 28): “There has never been a time in history when more of our ‘culture’ was as ‘owned’ as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now.”

The Free Culture logo is, according to the FC website, “usually added to an intellectual work (or collection) to indicate to potential recipients that it has been produced or provided by one or more free culturalists (adherents of free culture)”. The site goes on to say that the copyright in the work maybe neutralized by license such as a Creative Commons license, although the use of the logo does not require this. The FC website, however, does not appear to be linked to Larry Lessig’s “Free Culture”, although it shares the same name.

Unfortunately, the text on the Free Culture logo website indicates that the use of the Free Culture logo in itself does not mean much. This is because, under the law, a copyrightable work is automatically protected by copyright from the moment of its creation. Therefore, for recipients of the work to be able to exploit it in any manner they choose, they must obtain a license from the owner of the copyright in the work unless copyright law specifically allows the use they intend to exercise via the fair use doctrine or otherwise.

Some persons who use the Free Culture logo choose not to append a suitable license because they refuse to recognize the copyright system itself. However, the law does not allow individuals to choose whether or not they would like to recognize it. Even those who choose not to recognize the copyright system have their works automatically protected by copyright upon creation.

In addition to this, the meaning of the Free Culture logo itself appears to be fluid. The website on which it is available states:

“These are a few of the assurances that can be made by free culturalists concerning this and any other intellectual work to which this logo is attached:

No litigation will ever be initiated by a free culturalist against any individual for an act of copyright infringement concerning this work, any derivatives, or any works it derives from.

Any copyright a free culturalist holds to this work will not be voluntarily assigned or transferred to any other individual or organisation that is not also an adherent of free culture.

All elements of this work are implicitly attributed to their respective authors, and if explicit attribution is provided it may vary in level of detail (and provenance). Any unwitting explicit or implicit misattribution will be remedied as far as is practicable, and as soon as possible upon notice.

No use is knowingly made of work obtained through unauthorised access.”

It is pertinent to note that the website states that the assurances listed are only of view of the assurances which can be made – as such, presumably, they are not assurances which are always made. This leaves potential users of works marked with a Free Culture logo in something of a quandary. The logo itself merely seems to indicate that the copyright owner believes in a free culture but it does not appear to specifically allow potential users to freely use works marked with the logo.

Relinquishment of Copyright

One of the surest methods of ensuring that one’s work belongs to the public domain is by relinquishing the copyright in one’s work. Most jurisdictions allow for this to be done. In India, under Section 21 of the Copyright Act, 1957, “The author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed form to the Registrar of Copyrights and thereupon such rights shall cease to exist from the date of the notice.” When the Registrar of Copyrights receives a notice for the relinquishment of copyright, he is required to cause it to be published in the Official Gazette and in such other manner as he may deem fit. However, under the Act, a relinquishment of copyright would not affect any rights subsisting in favour of any person on the date of the notice. Further, it is pertinent to note that an author may choose to relinquish only some of the rights comprised in the copyright bundle and not relinquish the copyright in the work in question in its entirety.

The Copyright (Amendment) Bill, 2010, proposes to amend Section 21 of the Copyright Act. Under the proposed amendment, an author and would be able to relinquish copyright not only by sending a notice to the Registrar as the current law contemplates but also by way of public notice. However, despite the fact that an author may relinquish copyright by the issue of a public notice without informing the Registrar, the proposed Section could be interpreted to mean that the Registrar would still have the duty of causing the notice to be published in the Official Gazette (and in some other manner). This would impose upon the Registrar the additional duty of scanning through newspapers, magazines etc. in search of public notices relinquishing copyright. Whether or not this additional duty would fall to the Registrar is however, debatable.

What is clear though is that if the proposed amendments were passed in their current form, the Registrar would (within fourteen days from the publication of the notice in the Official Gazette) have to post the notice on the official website of the Copyright Office so as to remain in the public domain for a period of not less than three years. Thus, if the Copyright (Amendment) Bill were passed, the procedure to relinquish copyright could become simpler for copyright owners, though not for the Registrar of Copyright.

Conclusion

One problem with relinquishing copyright is that it would cause the relevant work to fall into the public domain. While this in itself is generally the purpose of relinquishing copyright, once the work is in the public domain, any person may make a derivative work using the public domain work as a foundation, and then claim copyright over the derivative work. There is a possibility that this would cause, for all practical purposes, a work which was in the public domain to fall out of it and once again become a proprietary work. Due to this, it may be advisable to license works under a licence such as the Creative Commons share-alike license instead of simply relinquishing copyright.

A free culture may be better served by working within the copyright system than by working outside it.

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